Petitioner
Connor McLaughlin, administrator of the Estate of Peter James
McLaughlin, by counsel Paul G. Taylor, appeals the July 29,
2016, order of the Circuit Court of Berkeley County granting
summary judgment to Respondent the City of Martinsburg.
Respondent, by counsel Keith C. Gamble and Nathan A. Carroll,
filed its response.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law. For these
reasons, a memorandum decision affirming the circuit
court's order is appropriate under Rule 21 of the Rules
of Appellate Procedure.

Peter
James McLaughlin ("the decedent") was a patient at
a Martinsburg, West Virginia, hospital, where he voluntarily
committed himself, and was taking prescription medications
under doctors' orders. On the evening of December 28,
2013, the decedent exited the hospital and walked to a Burger
King restaurant in Martinsburg.[1] There, he exhibited allegedly
abnormal behavior that prompted an employee to call 911 for a
welfare check. Martinsburg Police Officers responded to the
911 call and made contact with the decedent. Those officers
determined that the decedent did not present them with
probable cause on which they could exercise their police
authority to seize him against his will or over his
objection. Further, the responding officers agreed that the
decedent did not ask for any help related to a mental
illness. Emergency dispatchers received a second call shortly
thereafter from Ms. McLaughlin, and law enforcement responded
but were unable to make contact with the decedent because he
had left the area identified by Ms. McLaughlin.[2] The decedent
apparently left on foot walking along a public roadway, where
he was struck by an automobile while walking on the road. He
was pronounced dead at the scene of the accident.

Petitioner
filed his initial complaint against respondent on December
12, 2014, and he filed his second amended complaint against
respondent on May 7, 2015, consisting of two counts alleging
that respondent was negligent and that its negligence
resulted in the death of the decedent. Petitioner also sought
a writ of mandamus against respondent to compel it to undergo
a comprehensive review of its police practices. With regard
to his negligence claims, petitioner asserts that respondent
breached a general duty pursuant to West Virginia Code
§§ 8-12-5 and 8-14-1 to provide adequate police
protection to the decedent when officers failed to place him
in some form of protective custody after interacting with him
on the evening of his death. On March 6, 2015, the circuit
court entered an order granting in part and denying in part
respondent's motion to dismiss the mandamus action, and
dismissing with prejudice Count II of that complaint.
Respondent filed an answer on May 19, 2015.

On or
about January 19, 2016, petitioner filed his "Motion for
Declaratory Judgment to Resolve Issues of Constitutional and
Statutory Construction Applicable to this Civil Action."
Therein, he asked the circuit court to "issue and
declare that the construction of certain sections of the
Constitution of West Virginia, Statutes of West Virginia, and
decisional case law . . . are applicable to [respondent] and
its Police Department and officers, . . ." Petitioner
set forth nine issues he wished to have addressed, which
generally relate to the duties of respondent and
respondent's police officers. Those requested
declarations also ask that the circuit court declare that
respondent and its officers treat persons with mental
illness, drug addiction behavior, and other irrational public
behavior as a special class of citizens that need special
services outside of the "arrest-non-arrest-separation of
parties-sent on their way" standard responses.

Respondent
filed a motion for summary judgment on June 6, 2016. On July
29, 2016, the circuit court entered its order granting
summary judgment to respondent. In that order, the circuit
court made the following relevant findings: a) the City of
Martinsburg is clearly a political subdivision and is
entitled to all protections and immunities provided under the
West Virginia Governmental Tort Claims and Insurance Reform
Act; b) petitioner's claim alleging that respondent's
method of providing police protection caused the
decedent's death falls squarely within the immunity
provided under West Virginia Code § 29-12A-5(a)(5); c)
petitioner cannot prove any duty as a result of the
"public duty" doctrine; and d) respondent is
entitled to summary judgment in petitioner's wrongful
death action relating to the method and manner of providing
police protection because it is barred by the Governmental
Tort Claims Act and not subject to the special duty rule. The
circuit court granted respondent's motion for summary
judgment and denied petitioner's motion to alter or amend
the order denying his motion for leave to seek declaratory
judgment. It also denied petitioner's motion to compel
discovery served out of time.[3]Petitioner appeals from that
order.

[s]ummary judgment is appropriate where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, such as where the nonmoving party has failed
to make a sufficient showing on an essential element of the
case that it has the burden to prove.

Syl. Pt. 4, id.

"'A
motion for summary judgment should be granted only when it is
clear that there is no genuine issue of fact to be tried and
inquiry concerning the facts is not desirable to clarify the
application of the law.' Syllabus point 3, Aetna
Casualty & Surety Co. v. Federal Insurance Co. of New
York,148 W.Va. 160, 133 S.E.2d 770 (1963)." Syl.
Pt. 1, Carr v. Michael Motors, Inc.,210 W.Va. 240,
557 S.E.2d 294 (2001). As we have also explained,

[r]oughly stated, a "genuine issue" for purposes of
West Virginia Rule of Civil Procedure 56(c) is simply one
half of a trialworthy issue, and a genuine issue does not
arise unless there is sufficient evidence favoring the
non-moving party for a reasonable jury to return a verdict
for that party. The opposing half of a trialworthy issue is
present where the non-moving party can point to one or more
disputed "material" facts. A material fact is one
that has the capacity to sway the outcome of the litigation
under the applicable law.

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